College of William & Mary Law School William & Mary Law School Scholarship Repository Supreme Court Preview Conferences, Events, and Lectures 2016 Section 6: Immigration Institute of Bill of Rights Law at the William & Mary Law School Repository Citation Institute of Bill of Rights Law at the William & Mary Law School, "Section 6: Immigration" (2016). Supreme Court Preview. 261. https://scholarship.law.wm.edu/preview/261 Copyright c 2016 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/preview VI. Immigration In This Section: New Case: 15-1204 Jennings v. Rodriguez p. 316 Synopsis and Questions Presented p. 316 “SUPREME COURT TO REVIEW NO-BAIL POLICY FOR IMMIGRANTS p. 336 AWAITING HEARINGS” Jess Bravin “HIGH COURT TO DECIDE IF IMMIGRANTS ENTITLED TO BOND HEARINGS” p. 338 Allissa Wickham “COURTS SAY DETAINED NON-CITIZENS HAVE THE RIGHT TO BOND p. 340 HEARINGS” Richard Gonzales New Case: 15-1191 Lynch v. Morales-Santana p. 342 Synopsis and Questions Presented p. 342 “GENDER-BASED CITIZENSHIP LAW GETS U.S. SUPREME COURT REVIEW” p. 353 Greg Stohr “SUPREME COURT CITIZENSHIP CASE: SHOULD THE GENDERS OF PARENTS' p. 354 MATTER?” Christina Beck “SUPREME COURT AGREES TO HEAR BIRTHRIGHT CITIZENSHIP CASE” p. 356 Maggie Murphy “2ND CIRC. AXES CITIZENSHIP RULE WEIGHTED AGAINST FATHERS” p. 358 Allissa Wickham New Case: 13-502 United States v. Texas p. 360 Synopsis and Questions Presented p. 360 “WHITE HOUSE ASKS SUPREME COURT FOR NEW REVIEW OF IMMIGRATION p. 361 POLICY WITH 9 JUSTICES” Jess Bravin “OBAMA ADMINISTRATION ASKS SUPREME COURT TO RECONSIDER p. 364 IMMIGRATION PLAN” Robert Barnes “SUPREME COURT TIE BLOCKS OBAMA IMMIGRATION PLAN” p. 366 Adam Liptak & Michael D. Shear “OBAMA'S IMMIGRATION PLAN APPEARS TO BE IN TROUBLE AFTER SUPREME p. 367 COURT HEARING” David G. Savage “U.S. SUPREME COURT TO DECIDE MAJOR CASE ON OBAMA IMMIGRATION p. 371 PLAN” Lawrence Hurley “A RULING AGAINST THE OBAMA ADMINISTRATION ON IMMIGRATION” p. 374 Matt Ford Jennings v. Rodriguez 15-1204 Ruling Below: Rodriguez v. Robbins, 804 F.3d 1060 (9th Cir. 2015) Rodriguez sought relief on behalf of himself and others detained for more than six months without bond hearing during immigration proceedings. The requested relief constituted individualized bond hearings with burden on government. The district court denied the petition. Rodriguez appealed. The Court of Appeals reversed and remanded. On remand, the district court, entered preliminary injunction. The government appealed. The Court of Appeals affirmed. The District Court granted summary judgment to class and entered permanent injunction. Parties appealed. The Court of Appeals for the Ninth Circuit affirmed in part and reversed in part. Question Presented: Whether aliens subject to mandatory detention under 8 U.S.C. § 1225(b) must be afforded bond hearings if detention lasts six months; Whether aliens who fall under the mandatory detention provisions of Section 1226(c) must be afforded the same; Whether the government must demonstrate that the alien is a flight risk or a danger to the community in order to deny release on bond; Whether the length of detention must be weighed in the decision to release on bond; Whether new bond hearings must be afforded every six months. Alejandro RODRIGUEZ; Abdirizak Aden Farah; Jose Farias Cornejo; Yussuf Abdikadir; Abel Perez Ruelas, for themselves and on behalf of a class of similarly situated individuals, Petitioners–Appellees/Cross–Appellants, and Efren Orozco, Petitioner, v. Timothy ROBBINS, Field Office Director, Los Angeles District, Immigration and Customs Enforcement; Jeh Johnson, Secretary, Homeland Security; Loretta E. Lynch, Attorney General; Wesley Lee, Assistant Field Office Director, Immigration and Customs Enforcement; Rodney Penner, Captain, Mira Loma Detention Center; Sandra Hutchens, Sheriff of Orange County; Nguyen, Officer, Officer–in–Charge, Theo Lacy Facility; Davis Nighswonger, Captain, Commander, Theo Lacy Facility; Respondents– Appellants/Cross–Appellees. United States Court of Appeals, Ninth Circuit Decided on October 28, 2015 316 [Excerpt; some citations and footnotes omitted] WARDLAW, Circuit Judge: the government must prove by clear and convincing evidence that the detainee is a This is the latest decision in our decade-long flight risk or a danger to the community to examination of civil, i.e. non-punitive and justify the denial of bond. The government merely preventative, detention in the appeals from that judgment. We affirm in immigration context. As we noted in our part and reverse in part. prior decision in this case, Rodriguez v. Robbins, thousands of immigrants to the I. Background United States are locked up at any given time, awaiting the conclusion of administrative and On May 16, 2007, Alejandro Garcia judicial proceedings that will determine commenced this case by filing a petition for whether they may remain in this country. In a writ of habeas corpus in the Central District 2014, U.S. Immigration and Customs of California. Garcia's case was consolidated Enforcement (“ICE”) removed 315,943 with a similar case filed by Alejandro individuals, many of whom were detained Rodriguez, and the petitioners moved for during the removal process. According to the class certification. The motion was denied on most recently available statistics, ICE detains March 21, 2008. more than 429,000 individuals over the course of a year, with roughly 33,000 A three-judge panel of our court reversed the individuals in detention on any given day. district court's order denying class certification. We held that the proposed class Alejandro Rodriguez, Abdirizak Aden Farah, satisfied each requirement of Federal Rule of Jose Farias Cornejo, Yussuf Abdikadir, Abel Civil Procedure 23: The government Perez Ruelas, and Efren Orozco conceded that the class was sufficiently (“petitioners”) represent a certified class of numerous; each class member's claim turned noncitizens who challenge their prolonged on the common question of whether detention pursuant to 8 U.S.C. §§ 1225(b), detention for more than six months without a 1226(a), 1226(c), and 1231(a) without bond hearing raises serious constitutional individualized bond hearings and concerns; Rodriguez's claims were determinations to justify their continued sufficiently typical of the class's because “the detention. Their case is now on appeal for the determination of whether [he] is entitled to a third time. After a three-judge panel of our bond hearing will rest largely on court reversed the district court's denial of interpretation of the statute authorizing his petitioners' motion for class certification, and detention”; and Rodriguez, through his after our decision affirming the district counsel, adequately represented the class. court's entry of a preliminary injunction, the The panel also noted that “any concern that district court granted summary judgment to the differing statutes authorizing detention of the class and entered a permanent injunction. the various class members will render class adjudication of class members' claims Under the permanent injunction, the impractical or undermine effective government must provide any class member representation of the class” could be who is subject to “prolonged detention”—six addressed through “the formation of months or more—with a bond hearing before subclasses.” an Immigration Judge (“IJ”). At that hearing, 317 The government petitioned our court for to class members detained pursuant to two of panel rehearing or rehearing en banc. In these four “general immigration detention response, the panel amended the opinion to statutes”— §§ 1225(b) and 1226(c). Under expand its explanation of why the Illegal the preliminary injunction, the government Immigration Reform and Immigrant was required to “provide each [detainee] with Responsibility Act (“IIRIRA”) does not bar a bond hearing” before an IJ and to “release certification of the class and, with that each Subclass member on reasonable amendment, unanimously voted to deny the conditions of supervision ... unless the government's petition. The full court was government shows by clear and convincing advised of the suggestion for rehearing en evidence that continued detention is justified banc, and no judge requested a vote on based on his or her danger to the community whether to rehear the matter. The government or risk of flight.” did not file a petition for certiorari in the United States Supreme Court. The government appealed, and on April 16, 2013, we affirmed. We applied the Court's On remand, the district court certified a class preliminary injunction standard set forth in defined as: Winter v. Natural Resources Defense Council, Inc., which requires the petitioner to “…all non-citizens within the “establish that he is likely to succeed on the Central District of California who: (1) merits, that he is likely to suffer irreparable are or were detained for longer than harm in the absence of preliminary relief, that six months pursuant to one of the the balance of equities tips in his favor, and general immigration detention that an injunction is in the public interest.” statutes pending completion of removal proceedings, including Evaluating petitioners' likelihood of success judicial review, (2) are not and have on the merits, we began with the premise that not been detained pursuant to a “[f]reedom from imprisonment—from national security detention statute, government custody, detention, or other and (3) have not been afforded a forms of physical restraint—lies at the heart hearing to determine whether their of the liberty that [the Due Process] Clause detention is justified.” protects.” “Thus, the Supreme Court has held that the indefinite detention of a once- The district court also approved the proposed admitted alien ‘would raise serious subclasses, which correspond to the four constitutional concerns.’ ” statutes under which the class members are detained—8 U.S.C. §§ 1225(b), 1226(a), Addressing those concerns, we recognized 1226(c), and 1231(a). The class does not that we were not writing on a clean slate: include suspected terrorists, who are detained “[I]n a series of decisions since 2001, ‘the pursuant to 8 U.S.C.